Farmers are lambing, drilling, and worrying. Private estates are managing. Individual landowners are staying at home. Here are a few thoughts on the impact of COVID-19 on land access issues.
Whilst we are locked down and, where possible, working from home, the public are exercising. Isolated paths whether official or not are more attractive to those seeking to have their one hour a day exercise. More people are at home and are looking for the opportunity to get out safely and within the guidelines.
For existing public paths, particularly those closer to areas of habitation, this has resulted in increased use. It has highlighted the intrusive nature of some paths, where they pass close to houses or through working areas (farmyards in particular). The right of the public to use such routes raises issues of the ability of the landowner to ensure safe distancing from the public.
The public are touching fencing, gates, latches, stiles and signs. All of these are apparently capable of retaining the virus to a greater or lesser extent so this represents a risk to the landowner and other members of the public.
With certain “high profile” routes closed to the public, there is a risk that paths that are not recorded on the definitive map, becoming more attractive. Even in the countryside, these paths that perhaps a few locals may risk using from time to time are potentially more likely to attract those seeking exercise.
Directly challenging anyone who is on such a path is potentially fraught at the best of times, let alone in the middle of a public health crisis where anyone may be carrying the virus.
Strict control is difficult and may be inappropriate where there is a national mood that we must help one another. Our suggestions are given in this light and are as follows:
Official Paths (those recorded on the Definitive Map)
As always there is no “one size fits all” so do speak to your land agent if you have one or take professional advice. We are here (our office is in the garden!) and are working if you wish to discuss your specific issue.
On Thursday 5 October 2017 we enjoyed the red carpet experience at Denbies’ Wine Estate in Surrey as a finalist in the Best Rural Professional Services category in the Rural Business Awards, Sponsored by the CLA and Amazon. It was quite a night!
We were awarded “Highly Commended” in our category. As a small niche business we were delighted with this acknowledgement of the service that we provide.
The night started with a champagne reception giving us the opportunity to speak to fellow finalists and guests. An interesting discussion with the Amazon contingent included the usefulness of the Amazon delivery boxes as composting material!
Our table was next to the stage – ideal for viewing the pre-presentation final details and the host, Jules Hudson from Escape to the Country.
Of course to have won would have been fantastic but the calibre of our fellow finalists was significant. Being beaten by a law firm with more than 200 employees and partners and a turnover of £14M is no disgrace!
A great night, explaining footpath diversions and modification orders to our table and learning about dog treats, farm shops and baking from them.
Congratulations to everyone who made it to the finals – we know just how much work it takes to shine in your chosen field, Well done!
We are always pleased to talk about public rights of way – just get in touch using the form below.
It has been an exciting few hours since we learned we had been shortlisted in the Best Rural Professional Services Business category in the 2017 Rural Business Awards – and now it has been officially announced we can share this great news with our clients.
We know there are some great rural businesses out there so are privileged to get through the initial judging and be one of the five in the running for the Award.
Thanks are due to our great clients and for their recommendations – here’s just one:
We would describe Michael as extremely professional, incredibly knowledgeable on the subject matter and very capable of conveying incredibly complex information in a very user-friendly way. We would not hesitate to ask Michael to act for us again.
We remain committed to working with our landowner clients challenged by public rights of way. We are always happy to talk through a problem and to find a solution.
You will find more about us on our website www.etlandnet.co.uk and you can always email Michael Wood at email@example.com for help.
A public right of way can have a dramatic impact on the value of a property, sometimes making it unsaleable. However if you have fallen in love with a house and are willing to ask questions and do some research, then it might not be as bad as you think. We’ve set out some pointers below.
Is the path on the correct alignment? You might be surprised to know that some property owners have made changes to public rights of way without going through the formal diversion process. It will be the line on the map that will be enforced, not an alternative.
Look out for signs which show where the path runs
Are there stiles or gates on the route? You will need to be satisfied that these are “lawful limitations” and are recorded by the highway authority otherwise they are likely to be obstructions and you can be forced to remove them. You can only get permission for a gate that keeps livestock in or out of your property. The security of your pets or children is not a basis upon which an authority can permit you to have a gate, and a stile will rarely be authorised as a new structure.
An authorised gate may require special latches
Is the path part of a promoted route? You will need to ask or check on the Ordnance Survey’s published leisure maps where promoted routes are shown with diamonds.
Is the path well used? Be sceptical when the seller says that they have never seen anyone use the path. Even if that is the case, that does not mean that it will not be used in the future.
Is the path fenced off? The path might have been fenced off to stop the public and dogs straying, but any fencing must not obstruct the legal line and width of the path and there are rules about the fence height. If in doubt, check with the highway authority.
This footpath has been fenced on both sides across a paddock – but it is too narrow
Can you lessen the impact of the path on the property? You may be able to divert the path away from the house or out of the garden or away from some change of use of the land if this improves matters for you. Diversions are not straight forward but it is always worth investigating. We recommend taking specialist advice. And do bear in mind that diversions can take time to achieve.
The footpath gave a great view into the garden of this house – it has now been diverted.
We are standing on a public path – you can see into the windows of this house for sale.
It might be a matter of better management of the path. Proper signs can help and a fence or hedging may be a good way to provide the privacy you need. Bear in mind that if you plant a hedge it will grow sideways as well as up! You will need to cut back side growth if it goes across the path.
Some of our clients have been able to benefit from diverting paths to improve their privacy and security. As one noted to us “it’s just good land management practice to look after and enhance your property if you have the opportunity to do so.”
OUR KEY TIP!
Arrange to view the Definitive Map and Statement.
The Definitive Map and Statement is the legal record of the alignment, status and other details about the path and it is this information which the highways authority will rely upon. You will usually find how to see these documents through the “rights of way” pages on your county or unitary council’s website.
You can always contact us for advice – we can often give a preliminary view without charge and if nothing else, point you in the right direction. It costs nothing to ask us!
Contact Michael Wood by email firstname.lastname@example.org or give him a call on 07796 958572
Or complete the form below:
Two recent cases have demonstrated the potential minefield for landowner clients resolving public rights of way issues. We’ve been glad to get them through these problems and to have them both say that our input was invaluable.
In Hampshire, a relatively straight forward claim to upgrade an existing bridleway to a restricted byway ran into the huge complexity of the legislation when it emerged that the recorded route was on the wrong historic alignment.
On discovering during the investigation into the historic evidence that the route should actually run through ancient woodland, both our client and the council were agreed that this served no one’s purpose and that keeping the route on the existing alignment was the right thing to do.
To achieve anything, the first technical step would require a Modification Order to move the path back to the historic alignment through the woodland. Such an Order might also seek to upgrade that route to a restricted byway, which our client would challenge. We would then need a diversion order to move the route back onto the alignment currently recorded and used by the public. There could be no certainty that either order would succeed in total (although it was likely that the route would be moved back into the woodland) so a solution had to be found.
And we have found one. Working with the client and the council, there will be a restricted byway retaining the charm and characteristics of the currently used route. It will take some further work to finalise the required agreements and orders but the public, the client and the council will have a clearly defined, sympathetic route and the significant expense to both the client and the council of public inquiries and potential challenges will be saved.
Meanwhile in Kent, we were called in to negotiate with the council over the availability of a public footpath which had a significant impact on our client’s estate but which had to be reopened. Having made some initial demands of our client to open it to 2 metres in width, and to remove gates, we brought some direction to the discussions, pointing out that the route had no defined width. The client was happy with 1.5 metres and this was agreed.
More importantly we were able to argue that the gate that the client required was actually an improvement to the stile that formerly existed on her boundary and should be permitted as a lawful structure. Again this was agreed and is now being implemented. The client has achieved what she wanted and we have maintained a good relationship between our client and the council which looked at times to be strained whilst the issue was in dispute.
We will always fight our client’s corner but there are many situations where an early and knowledgeable intervention can help bring matters to a positive conclusion, saving time, money and anguish.
As always we are here to help! Contact Michael Wood – email@example.com or call 07796 958572 or complete the form below:
ET Landnet Limited was incorporated 10 years ago today. Happy Birthday to Us!
We’ve seen a few changes in that time. The company has relocated its administration centre from the South East of England to Wales, whilst most of our work continues to be for existing and new clients in England. The focus of our work has shifted from fighting claims to add rights of way to managing public path diversions for our clients.
We’ve enjoyed some notable triumphs, far more than we can cover in this one post, but we will be looking back over our projects in the coming weeks so keep checking our blog.
We go into our next 10 years with enthusiasm and anticipation that the long discussed changes to rights of way procedures will soon be in place. It is worrying to note that we still have current projects which have been running for at least 10 years where councils have still to determine outstanding path claims.
So here are a few photos of some of the projects we have had the privilege to work on!
Pitshill House, West Sussex – Our flagship diversion case.
Baydon House Farm, Wiltshire – The Diversion of two Bridleways for an Equestrian Business.
Quainton Stud, Buckinghamshire – a long running bridleway problem finally resolved by a diversion.
Little Rollright, Oxfordshire – still going after many years but moving towards a finalisation of diversion proposals.
Ibstone, Buckinghamshire. This is an ongoing diversion awaiting the introduction of the Right to Apply.
Fawley Court, Buckinghamshire – we arrange an annual temporary diversion of a footpath for our client’s hospitality event
We have worked on access improvements to secure diversions, and:
…visited some lovely parts of the Country.
Whether it has been fighting claims in North Yorkshire or Kent, or diverting paths in the South East or North West, we have enjoyed working with clients and their professional advisers.
Always remember that you can call or email us for initial advice without obligation.
Call 0203 086 7657 or email firstname.lastname@example.org See more at www.etlandnet.co.uk
Or use the contact form below:
<a href=”http://downloadclipart.org/f/birthday-cake-clip-art-for-10-year-286″>Clip art image by http://downloadclipart.org/</a>
The so-so summer of 2016 is passing into history. Team GB has inspired us all at the Olympics with the Paralympics set to give us even further impetus.
If you have a house or own or manage land which is affected by a footpath, bridleway or restricted byway, and have an alternative route that the path could take to improve your privacy, security or the management of that land, now is a great time to start planning. The new right to apply rules are finally coming into play and will provide a fairer system for diversions to be considered and progressed, and the process should be quicker, too.
A diversion that removes the need for the public to use stiles improves the network and when a stile like this needs to be repaired, reduces the liability of the landowner too!
There are plenty of examples where path diversions succeed without objection, too. They do not always attract objections and even where there may be initial reluctance, it is often possible to find a compromise.
As the new rules start to apply, we will be updating you through our blog – but in the meantime we have many cases sitting ready to go when we can overcome the reluctance of councils to make orders because of the costs they may incur if there are objections.
We are always happy to discuss diversion proposals – please feel free to call our Director Michael Wood on 07796 958572 or email Michael email@example.com or fill in the form and we will contact you.
Farmers need gates. Farmers have always needed gates. Gates in the countryside are passed unnoticed – they are things of utility and blend in to the background.
Except, that is, where they are across a public right of way. Then they become items for scrutiny and potential action. They limit the public’s right of way and they may be obstructions.
One would think that the highway authority, charged with the duty to assert and protect the public right of way and to remove obstructions would be clued up on what gates are lawful and what gates are obstructions. They should find the information in the “Definitive” Statement which records all lawful limitations.
Gates may be historic in that they were in existence at the time the public right of way came in to being and the dedication of the right of way is therefore deemed to be subject to a “lawful limitation” or they may be authorised for stock control purposes which also makes them “lawful”. The difference is that a historic gate is not subject to a request for removal once its purpose has been served. In contrast a gate erected for stock control must be removed once that purpose has ended, such as when pasture is turned over to arable cultivation.
It potentially gets more difficult! Lawful limitations may be upgraded with the agreement of the highway authority and are then subject to the authorisation process dictating their character, design and operation. All these authorisations need to be recorded and should be added to the Definitive Statement. It was not that long ago that a friendly rights of way officer would supply and erect a stile or a gate for a landowner to get over a problem, no questions asked and no paperwork done. Now authorisations are formal. Nothing much changed in “gate legislation”. The change had to happen once the public had the power to force councils to remove obstructions.
When the Definitive Statement was first prepared a detailed survey of all paths was carried out and the gates and stiles found to exist were to be recorded. This might be by showing the structure on the survey maps (“F.G.” = Field Gate) or by a note in the written description (“proceeds to a stile…”). This enabled those at county level to ensure the records were properly compiled so all would be clear in the future.
Great idea – poor execution. The local surveyors of the rights of way were mainly diligent in their work. Looking back now some 60 years it is inexplicable why the detail required and recorded for the survey such as the location of gates and stiles was frequently ignored when the Definitive Map and Statement were finally produced from the survey data. The same is also true of widths, but that is for another time.
In two recent cases for CLA members (thank you to the CLA for the recommendation, by the way) two different authorities were threatening serious action for the removal of gates. One in the North York Moors was across a route that had been surveyed as a public path but which had been omitted from the Definitive Map because it was a maintainable highway (this could be the subject of a separate post in itself) and the other in Hertfordshire was a gate across a bridleway.
Common to both cases was the owners’ knowledge that the offending gates were historic. But how could this be proved?
Both clients were able to provide statements, either of personal knowledge or from occupiers, to confirm the existence of their gates, but these words did not seem to be enough.
The clinching evidence came from the parish surveys from the 1950s. The surveyors had diligently recorded the features on these routes. In the North York Moors case the “F.G.” was plainly marked on the survey map. In Hertfordshire the Parish Survey described the gate and its location.
Detailed letters to each authority setting out why the authority was wrong to require the removal of the gates and requesting the withdrawal of the threats against the landowner followed. The evidence from the 1950s surveys was proof in both cases that these were historic gates, so that the respective highway authorities withdrew their threats of action. Applications to modify the definitive map and statement to correct the records followed and are being processed and the gates are still in place.
In both cases the authorities acted against the landowners in response to a complaint from a third party, placing the burden on the landowners to prove they were entitled to maintain their gates. In the Hertfordshire case the compelling evidence only emerged once we made a specific request for the documentation.
Landowners are not specialists in rights of way and are unlikely to appreciate that these records exist and what they may show. When an officer from the highway authority turns up and tells a landowner they are in the wrong, not every landowner will have the personal knowledge to challenge this. When it comes to gates and stiles, some investigation and having someone who “knows what they are talking about” on the landowner’s side is no bad thing. Not all gates and stiles are lawful limitations but landowners should treasure those that are and the public and the highway authority do not necessarily have access to accurate records about these structures.
In time two inaccurate records will be corrected through the formal, long-winded procedure of modification. One cannot guess at how many further errors remain to be corrected, or how many landowners have removed gates or stiles they were entitled to keep.
The system is frustrating for the public and for landowners alike and placing the burden on the landowner due to an omission in the 1950s to do the job right seems particularly harsh.
Yet these two cases do illustrate that however difficult, there can be light at the end of the tunnel (or path!) when an officer calls or a letter drops on to the mat to say the gate must go.
As always, we are here to help if you have a public right of way issue – call us on 0203 086 7657 or complete the form below.